A bathroom rule can specify who should enter. It cannot tell a shop assistant which customer to question.
That gap sits at the centre of the Equality and Human Rights Commission’s updated Code of Practice, which came into force on 5 August 2026. The Code explains how service providers, public bodies and associations should apply the Equality Act 2010 following last year’s Supreme Court judgment on the meaning of sex.
It also exposes a practical problem. A policy may be written using information recorded at birth, but the people expected to follow it cannot see that information.
They see a face, a body, a haircut and a set of clothes. Somebody then decides whether the person in front of them belongs.
A rule without a routine test
The Supreme Court ruled in April 2025 that “sex”, “woman” and “man” in the Equality Act refer to biological sex. A Gender Recognition Certificate does not alter a person’s sex for the purposes of that Act.
The judgment did not order every toilet in Britain to become single-sex. The new Code does not do so either. Instead, it sets out circumstances in which separate- or single-sex services may be lawful and how providers should balance their aims against the disadvantages created.
The Code carries legal weight but does not create new legislation. Courts and tribunals must take relevant parts into account, while the final interpretation of the law remains with them.
For toilets, however, the question is not only what a provider may put on a sign. It is how that sign works once somebody walks through the door.
Paragraph 13.168 of the Code says that, where there is clear evidence of an issue, grounds for concern might include a person’s “physique or physical appearance”, behaviour or complaints from other service users. The same paragraph warns that a person’s sex cannot always be determined from appearance.
Two paragraphs later, the Code says it is unlikely to be practical or appropriate to approach an individual about their sex in relation to an incidental facility such as a toilet. It later acknowledges that Britain has no official document that provides reliable evidence of sex for this purpose. Passports, driving licences and some birth certificates may not supply the answer the policy seeks.
The tension is difficult to resolve. Appearance can help create suspicion, but cannot resolve it. Documents cannot reliably resolve it either, and routine questioning is discouraged.
So who polices the bathroom door?
Complaints become enforcement
Most establishments will not employ somebody to inspect every person entering a toilet. Enforcement is more likely to begin when another customer complains, a member of staff notices somebody they consider unusual, or security is called after a confrontation has already started.
That makes the public part of the enforcement system.
The Code does not instruct customers to challenge strangers. Its emphasis on proportionality, privacy and sensitivity points in the opposite direction. Yet a rule without a routine official process leaves room for informal policing by people with neither private information nor legal training.
That is already how some people experience these spaces. In May 2025, Claire Prihartini was changing at her local swimming pool after treatment for breast cancer. She had undergone a bilateral mastectomy. According to her account to The Guardian, another woman saw her flat chest, declared that a man was in the changing room and continued looking at her body after Prihartini explained that she was a woman.
The encounter did not begin with evidence about Prihartini’s sex. It began with a stranger deciding that her body did not look female enough.
That turns the boundary between trans and cis people into a test of conformity.
A trans woman may be challenged in a women’s toilet. A trans man required to use a women’s facility may also be challenged because other users perceive him as a man. A masculine woman, a butch lesbian or a woman whose body does not fit a stranger’s expectations may face the same opening accusation despite not being trans.
The EHRC’s own consultation recorded requests for guidance concerning women perceived to be trans. Respondents also asked about people with differences in sex development and people who are non-binary. Appearance-based enforcement produces uncertain targets.
Not everyone questioned will share the same legal position or lived experience. The point is not that their experiences are interchangeable. It is that strangers cannot reliably identify the distinction on sight.
A small population, a wider inspection
The best official estimate suggests that trans people form a small minority. The Office for National Statistics says roughly one in 200 people aged 16 and over in England and Wales reported a gender identity different from their sex registered at birth in the 2021 Census.
The ONS cautions that the precise figure is uncertain because the question was voluntary and some responses were difficult to classify. It nevertheless concluded that an estimate of around one in 200 broadly aligns with other evidence.
A system designed around identifying that small population cannot operate visually without examining a much larger one. Every person who does not meet somebody else’s expectations becomes a possible false identification.
There is no national dataset counting how often cisgender people are challenged in British toilets because they are assumed to be trans. That absence matters. Politicians and regulators can describe a policy’s intended group, but without incident reporting they cannot measure the policy’s actual reach.
Safety outside the cubicle
The debate is frequently framed as though risk exists only inside a bathroom. For trans and gender-nonconforming people, risk may begin at the entrance.
Police in England and Wales recorded 3,809 transgender hate crimes in the year ending March 2025. That was an 11 per cent annual fall, although changes to recording practices affected some categories.
The figure does not reveal how many offences involved toilets, nor does it prove that a particular bathroom policy causes hate crime. It does establish that public confrontation takes place within an existing climate of hostility. Asking who is encouraged to challenge whom is therefore not an abstract concern.
The Code recognises part of this problem. In an example involving a shopping centre, it says providing only separate-sex toilets may create safety risks and distress for trans users required to use facilities corresponding to biological sex. The suggested response is to add individual lockable rooms with their own hand basins that anybody can use.
That solution offers privacy without requiring a stranger to classify the person outside. It also depends on suitable toilets existing.
Britain’s missing bathrooms
The policy debate is taking place during a shortage of public facilities. In a House of Commons debate in June 2026, MPs cited research suggesting England has one public toilet for every 15,500 people and that provision has fallen by 14 per cent since 2016.
Scarcity turns an apparent alternative into another queue.
Smaller venues may designate an accessible toilet as the mixed-sex option. The Code describes this as potentially proportionate, but says providers should monitor negative effects on both trans and disabled people.
That warning concerns a substantial population. The 2021 Census recorded 10.4 million disabled people, or 17.8 per cent of the population of England and Wales.
An accessible toilet is not spare capacity. Treating it as the universal answer can increase waiting times for people who require its space, equipment or privacy. Some facilities also require a RADAR key, a barrier raised during the EHRC consultation.
Parents with children, carers supporting somebody of another sex, people with stomas and those with medical conditions requiring urgent access already know that toilets are infrastructure rather than symbols. A policy that ignores capacity transfers its cost to the person with the fewest alternatives.
Measuring the consequences
If the consequences of these policies are to be understood, organisations will need to record more than complaints supporting exclusion.
They should record who was questioned, what prompted the intervention, whether the concern was substantiated and what happened afterwards. They should measure waits for accessible or individual toilets, reports of harassment, occasions when people leave without using a facility and complaints from those incorrectly challenged.
Public bodies should publish anonymised findings as part of their equality assessments. Without those figures, a policy can appear successful simply because the people most affected stop entering the building.
The Code repeatedly calls for balanced decisions. That balance cannot be measured if one side of the scale remains undocumented.
The person at the door
Bathroom politics often relies on certainty. The law supplies categories, the sign supplies an instruction and the public is expected to behave as though the boundary is visible.
It is not.
Nobody standing outside a toilet can see a person’s birth record. What they can see is whether that person conforms to a stereotype.
The establishment may write the rule. The state may explain it. But the moment of enforcement can belong to an irritated customer, an uncertain employee or a security guard arriving after a stranger has complained.
That is the policy as people will experience it. Before Britain asks who belongs in which bathroom, it should ask who will be given the power to decide.